The Doctrine of Lis Pendens in Nigerian Property Law -By Olorunmaiye Joshua

Olorunmaiye Joshua

Many a time, litigants in Nigeria seek to outsmart each other by advising themselves to quickly sell off or transfer interest in a subject matter to third party while there is a pending law suit in the Court over such a subject matter or property.

Lis pendens is expressed in the Latin maxim, ‘Lis pendent lite nihil innovetur’ and means that nothing should change during the pendency of a suit. It constitutes a notice required to warn all parties that certain property is the subject matter of ongoing litigation and that any interest deemed acquired during the pendency of such suit must be subject to the decision of the court arising out of such ongoing suit.

According to the Court of Appeal in Akiboye v. Adeko (2011) 6 NWLR (pat 1244) 415, the doctrine has evolved for the purpose of preventing one party from fraudulently seeking to overreach the decision of the court granting title to the opposing party on the basis that he had divested himself of the title before the decision of the Court was made.

The doctrine applies in respect of title to property and thus, where title to property is the subject matter of litigation; all intending sales must abate or be put on hold until the outcome of the ongoing Court process.

The point here is that if a third party chooses to purchase the property, the subject matter of litigation from one of the litigants during the currency of the suit, he does so at his own risk. If it turns out that the person from whom he bought had no title or was adjudged at the end of the suit to not be the owner, the purchase must take as he finds.  The contract entered into by a third party who purchases such property does not automatically become void, but must abide and be subject to the outcome of the suit.

This means therefore that once a dispute arises over any property and such matter is taken to the court of law for the determinations thereof, none of the parties should purport to sell, transfer or purchase the property until the disputed issue has been settled by the court. This also serves as a form of ‘buyer beware’ notice which is known as ‘caveat emptor’ to a prospective purchaser, as the doctrine will operate whether or not the purchaser had notice of such existing legal dispute over the title to the property.

As stated in Umoh v. Tita (1999) 12 NWLR (pt. 631) pg. 47 the essence of this doctrine is to prevent the seller from transferring any effective title to a purchaser by depriving him of any rights to transfer the title in the property during the currency of a suit.

Hence, the doctrine does not operate to defeat a title to property that had vested before the commencement of litigation over title to the property, nor does it operate to nullify the sale of property that is the subject matter of litigation. It only operates to make title to property acquired during the pendency of a suit to be subject to the judicial outcome of the suit.

The Supreme Court in EFP Co. Ltd v. NDIC (2007) 9 WLWR (pt. 1039) pg. 216, relying on its decision in Bua v. Dauda (2003) 13 NWLR (pt. 838) 657 at 686, stated that for the doctrine to apply, the following conditions precedent must be shown;

1. That at the time of the sale of the property, the suit regarding the dispute about the property was already pending. The doctrine of Lis pendens will apply only if the sale was made after the matter was already brought before the court.

1. That the action or Lis was in respect of real property, that is, landed or immoveable property as the doctrine never applies to personal properties such as shares or money.

1. That the object of the action in court was to receive or assert title to a specific real property. The pending action must be such that the Plaintiff insists that a right of ownership in the property be transferred to him rather than an acclaimed previous owner or possessor. It must be an action that goes to the root of exclusive ownership of the said property.

1. That the other party had been served with the originating processes in the pending action..

It is important to note that the above conditions are required to exist concurrently rather than separately. Hence all the aforementioned conditions must exist together in each circumstance and one must look at all four conditions to ascertain the rightful application or otherwise of the doctrine.

Nevertheless, if upon the conclusion of a matter, a party finds that the subject has been sold by the adverse party, then it is for him to bring a claim before the court to enjoy the benefit of the doctrine.

In doing this, such a party has the burden to show;

1. That there was in fact an alienation which was made when an action on the subject matter was pending in court.
2. That there has been a judgment or order from such a pending suit in his favour.

• That the alienation during the pendency of the suit was prejudicial or negatively affects him. (Oronti v Onigbanjo [2004] 17 NWLR (pt. 903) 601.

Indeed, the Court resents such reprehensible conducts and would usually not hesitate to resort to the use of its disciplinary powers to restore the status quo in appropriate cases.

In Oshinowo v NBN Ltd (1998) 11 NWLR (part 574) 408, the Court of Appeal, in setting aside a purported sale/purchase held that after a defendant has been notified of the pendency of a suit seeking an injunction against him, his subsequent act is at his peril and is subject to the power of the court to restore the status quo wholly, that is, to set it aside, irrespective of the merits. The Court went further to state that in the instant case, the subsequent sale of the property was definitely caught up the principle of Lis pendens as both the Respondent and the purchaser were served a motion on notice prior to the completion of the  sale. In fact, the Appellant’s counsel, upon gaining knowledge of a publication of an auction notice for the property had immediately written a letter to the Respondent’s counsel advising him against the intended sale. Yet, the Respondent disregarded everything and went ahead to sell the property by auction 9 days after the service on them of the motion and during the pendency of the sale.

Again, the doctrine is aimed at preserving the res, that is, the subject matter.  It does not exist qua alienation per se, but where the alienation is either prejudicial or unjust to the other party who has been successful in the pending action, then it will be applied.

*OLORUNMAIYE JOSHUA is a Lagos based lawyer. He can be reached via email at joshomaiye@gmail.com and social media @joshgiantfeet.